Squeeze Play

The Bush administration’s move to end half a century of reliance on the ABA to vet potential judicial nominees brought long-simmering arguments over the association’s role to a boil-and may also boil over with unintended results.

Several key Democratic Senate leaders-most significantly Patrick J. Leahy of Vermont, the ranking minority member on the Judiciary Committee-say they still will wait for the ABA’s input before moving forward on any nominees. Further, they and other Democrats are expected to scrutinize nominees even more closely because of the administration’s refusal to rely on the association in gathering judgments of possible candidates from local lawyers who know and work with them.

President Bush’s edict removes the ABA from its quasi-official role in judicial selection. But the association’s president, Martha Barnett, says the peer review and rating will continue, and the information will be provided to the Senate Judiciary Committee and the administration.

But the ABA Standing Committee on the Federal Judiciary will no longer receive the names of potential nominees before they are made public. The Bush administration says the association’s views will be considered along with those of other groups, but it will not be asked to prescreen nominees and will have no other preferential status.

Screening Validity Threatened

Barnett, of Tallahassee, Fla., is concerned that “once a nominee’s name is out it might be hard to achieve the same level of candor” from local bar members who are interviewed by the vetting committee.

The committee’s confidential prescreening can include as many as 60 interviews. It has been seen as a way to help presidents avoid embarrassing surprises after a nominee’s name is announced. It also has been considered an aid for presidents who need to ward off individual senators seeking political plums for their sometimes less-than-qualified favorites.

The Bush administration probably had hoped to speed up the process and lessen resistance to more conservative nominees as it set out to fill 94 vacancies, 29 of them on appellate benches. But key Democrats have pledged, and some Republicans predict, that the process now will slow down and the more conservative nominees are less likely to be confirmed.

The controversial move to scrap the role the ABA has played since 1953 comes at a time when the Senate is evenly balanced, so Democrats can easily thwart nominations. If 98-year-old Sen. Strom Thurmond, the South Carolina Republican, should leave before his term is up in 2003, the state’s Democratic governor probably would appoint a Democrat and tip the balance. Leahy then would take over from Republican Orrin Hatch of Utah as chair of the Judiciary Committee and lead the confirmation process.

Thus the ABA became yet another political football as the new administration flexed its muscles in several policy areas dear to conservatives. Less than two months into office, Bush also has pulled back from a commitment to reduce carbon dioxide emissions from power plants, repealed ergonomics regulations in the workplace and denied funding to groups that provide abortions and counseling abroad.

Perceived Slight

Many observers attribute the ouster of the ABA from its quasi-official role to the increasing attacks on the association by conservative political groups since the failed nomination of Robert Bork for the Supreme Court in 1987. Though the ABA committee found Bork “well-qualified,” the fact that four of its 15 members had voted “unqualified” continues to irk his supporters. The Senate rejected Bork’s nomination by a 58-42 vote.

Statistics overwhelmingly refute concerns that the ABA committee favors Democrats over Republicans. Available numbers show that, since 1960, of 26 potential nominees rated “unqualified” by the committee, only three were named by Republican presidents. Further, the ratings have not constituted a veto. Three of President Clinton’s nominees were found to be “unqualified” but still were confirmed.

“What President Bush has done with the ABA is mostly symbolic,” says Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst and author of Picking Federal Judges: Lower Court Selection from Roosevelt Through Reagan (New Haven: Yale University Press, 1997). “He essentially gave some fresh meat to his more far-right supporters.”

Symbolic or not, it certainly was the dropping of another shoe. In 1997, Hatch removed the ABA from its formal role in the Senate’s judicial confirmation process, in which it had participated since 1947. The association has continued to provide its reviews and ratings directly to all members of the judiciary committee; previously the chair received the report and circulated it to the committee.

Energized by Hatch’s symbolic gesture, conservative groups, particularly the Federalist Society, whose members are numerous in key positions in the Justice Department and White House, have clamored even more for the ABA’s removal from the process altogether.

The White House counsel’s office acknowledged the possibility in a New York Times story shortly before a scheduled March 19 meeting with ABA leaders to go over the logistics of vetting. The agenda changed to more of a cross-examination of the ABA’s role.

Soon after, White House counsel Alberto Gonzales wrote a letter to Barnett informing her that the administration will not provide the names of nominees to the ABA prior to submitting nominations to the Senate or announcing them publicly.

“It would be particularly inappropriate, in our view, to grant a preferential, quasi-official role to a group such as the ABA that takes public positions on divisive political, legal and social issues that come before the courts,” Gonzales wrote.

In the flurry of news conferences and interviews during that week, Barnett lamented “what appears to be the triumph of politics over professionalism.”

“Trying to tie the committee to the House of Delegates’ so-called liberal policies is a red herring,” Barnett said in an interview. “The committee is isolated and insulated and quite diverse.”